ASSISTANT SALES TAX OFFICER AND ORS. versus B. C. KAME, PROPRIETOR KAME PHOTO STUDIO

Citation: [1977] 2 S.C.R. 435 · Decided: 14-12-1976 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Dismissed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

ASSISTANT SALES TAX OFFICER AND ORS. 
v. 
B. C. KAME, PROPRIETOR KAME PHOTO STUDIO 
December 14, 1976 
[H. R. KHANNA, A. C. GUPTA AND JASWANT SINGH, JJ.] 
43 5 
Madhya Pradesh General Sales Tax Act, 1959, whether taking photographs 
and supplying photo-prints is sale transaction for the purpose of-Contract of 
sale and contract of work and labour, distinction between. 
r 
The respondent carries on business, inter alia, of supplying 
photo-prints 
C 
to those who get themselves photographed at his studios. The 
Sales-tax 
· 
authorities assessed him and levied sales tax on his supply of photo-prints. The 
respondent filed a writ petition in the High Court contending that in supplying 
photo-prints, he did not enter into sale transactions but only undertook contracts 
of work and labour. He also refuted the appellant's contention that a finished 
photograph was a marketable commodity. The High Court allowed the writ 
petition holding the respondent not liable to ,_;;y sales-tax on the supply 
of 
photo-prints. 
Dismissing the appeal, the Court, 
HELD : ( 1) When a photographer undertakes to take photograph, develop 
the negative, or do other photographic work and thereafter supply the prmts 
to his client, he cannot be said to enter into a contract for sale of goods. The 
contract on the contrary is for use of skill and labour by the photographer to 
bring about desired result. 
[439E] 
Masanda's case (1957) 8 STC 370 and Camera House Case (1970) 25 
E 
STC 354, distfoguished; 28 S.T.C. 1 MP reversed. 
(2) A contract of sale is one whose main object is the transfer of property 
in, and the delivery of the possession of, a chattel as a chattel to the buyer. 
Where the principal object of work undertaken by the payee of the price is not 
the transfer of a chattel qua chattel, the contract is one of work and fabour. 
t 
The test is whether or not the work and labour bestowed end in anything that can 
properly become the subject of sale. [437D-E] 
F 
State of Himachal Pradesh & Ors. v. Associated Hotels of India Ltd. 29 
STC 474 and State of Madras v. Garmon Dunkerley & Co. (Madras) Ltd. 
9' 
-."tSTC 353, applied. 
Sale of Goods, 4th Edn. p. 10 by P. S. Aliyah relied upon. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 138 of 1972. 
(From the Judgment and Order dated 20.3.1971 of the Madhya 
Pradesh High Court in Misc. Petition No. 313/70). 
I. N. Shroff, for the appellants. 
S. V. Gupte, !. D. Jain, Miss Kanwaljit Miglani and Bairam Sahgal 
for the respondent. 
The Judgment of the Court was delivered by 
KHANNA, J.-Whether sales tax is payable by a photographer under 
the Madhya Pradesh General Sales Tax Act (Act 2 of 1959) when the 
G· 
A 
B 
c 
436 
SUPREME COURT REPORTS 
[1977] 2 S.C.R. 
photographer takes . photographs or does other photographic 
work 
and thereafter supplies the photographic prints to his client or customer 
is the question which arises for determination in this appeal on certificata 
against the judgment of Madhya Pradesh High Court reported in 28 
STC 1. 
The High Court answered the question in the negative in 
favour of the assessee respondent. 
The respondent is the proprietor of Kame Photo Studio. 
He has 
apart from his main shop two branches. 
He carries on business, inter 
alia, of buying and selling photographic goods. 
'After buying photo-
graphic goods he either sells them to his customers or uses them in 
three ways-( 1) in taking photographs and supplying prints thereof, 
(2) in making enlargements for the clients who bring their own nega-
tives, and (3) in preparing positive prints of the same size from the 
negatives brought by the clients. 
For doing these various types 
of 
works the assessee respondent charges consolidated amount depending 
upon the work involved and the size and number of prints demanded 
by the client. 
! 
The sales tax authorities assessed the respondent for different periods 
.from April 1, 1964 to March 31, 1969 to sales tax on his turnover on 
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best judgment basis as he had not kept full and complete accounts. It 
may be convenient to refer to the figures of assessment for one of the 
years. 
For the year 1964-65 the total turnover of the respondent was 
taken to be Rs. 41,500. 
Out of this amount a deduction of Rs. 6,500 
was allowed as relatable to developing and enlargement which 
was 
considered to be not chargeable to tax. 
The balance of Rs. 35,000 
was divided into two parts-Rs. 12,000 being treated as relatable to 
E 
sale of materials as such and 

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